800 F.2d 310 (2nd Cir. 1986), 1164, Wagner Seed Co. v. Daggett

Docket Nº:1164, Docket 86-6032.
Citation:800 F.2d 310
Party Name:16 Envtl. WAGNER SEED COMPANY (a subsidiary of Wagner Brothers Feed Corp.), Plaintiff-Appellant, v. Christopher J. DAGGETT, as Regional Administrator of the U.S. Environmental Protection Agency, Region II, and the U.S. Environmental Protection Agency, Defendants-Appellees.
Case Date:September 10, 1986
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 310

800 F.2d 310 (2nd Cir. 1986)

16 Envtl.

WAGNER SEED COMPANY (a subsidiary of Wagner Brothers Feed

Corp.), Plaintiff-Appellant,

v.

Christopher J. DAGGETT, as Regional Administrator of the

U.S. Environmental Protection Agency, Region II,

and the U.S. Environmental Protection

Agency, Defendants-Appellees.

No. 1164, Docket 86-6032.

United States Court of Appeals, Second Circuit

September 10, 1986

Argued April 16, 1986.

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[Copyrighted Material Omitted]

Page 312

Frank L. Amoroso, Garden City, N.Y. (Rivkin, Radler, Dunne & Bayh, Garden City, N.Y., of counsel), for plaintiff-appellant.

Janice Siegel, Asst. U.S. Atty., Brooklyn, N.Y. (Robert L. Begleiter, Asst. U.S. Atty., Reena Raggi, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for defendants-appellees.

Before KAUFMAN, TIMBERS and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

This litigation began when a bolt of lightning struck appellant's warehouse on Long Island, New York. During the ensuing fire-fighting efforts toxic chemicals stored in the warehouse spilled into the surrounding neighborhood. Appellant asserts that an administrative order directing it to cleanup the toxic spill promptly placed it on the horns of a dilemma. To comply would be costly without the possibility of reimbursement from another responsible party; to refuse to comply would subject it to heavy fines. Because appellant believes that the lightning as an act of God provides it with a complete defense to the administrative order, it commenced the instant litigation and, having obtained no relief in the district court, brought this appeal asking us to review that defense de novo and issue an injunction staying the order. Doubtless appellant thinks itself caught between the devil and the deep blue sea, but as the following analysis will demonstrate, such is not the case.

Appellant, Wagner Seed Co. (Wagner), appeals from an order of the United States District Court for the Eastern District of New York (Bramwell, J.) that denied its motion for a preliminary injunction sought against appellees, Christopher J. Daggett, as Regional Administrator of the United States Environmental Protection Agency, Region II, and the United States Environmental Protection Agency (EPA). The district court concluded that it lacked subject matter jurisdiction over appellant's claim that challenged on the merits an administrative order issued by the EPA. The district court also rejected appellant's constitutional claims, holding that the fine and penalty provisions of the Comprehensive Environmental Response, Compensation,

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and Liability Act, 42 U.S.C. Sec. 9601 et seq. (CERCLA), under which provisions the EPA administrative order was issued, comports with due process. This appeal requires us to review these holdings and to rule, in addition, on appellant's request that a preliminary injunction be issued by this Court.

I FACTS

Wagner distributes animal feed and agricultural chemicals to nurseries and municipalities. Its inventory is stored in a warehouse in Farmingdale, New York. The agricultural chemicals are kept apart from the other goods since many of them pose threats to human health. Some are neurotoxic, possibly carcinogenic, or both.

This segregation policy became a crucial factor in the instant case when on June 1, 1985, Wagner's warehouse was destroyed by fire. According to eyewitness reports, the fire was caused by a lightning bolt that struck appellant's building. The firefighting effort took two different approaches--the section where the toxic chemicals were stored was allowed to burn completely, while in the other areas water was used to fight the flames. The decision to allow the complete combustion of the chemicals was made upon the advice of an expert who believed that this would minimize the extent of the chemicals' spread through runoff water. Despite the firefighting efforts, Wagner's warehouse was totally destroyed and chemicals were carried to surrounding properties by the runoff water.

A cleanup operation under the supervision of the New York State Department of Environmental Conservation (DEC) was immediately commenced by Wagner and several remedial actions were also taken in the ensuing months including draining the catchbasins and removing contaminated debris. Wagner spent several hundred thousand dollars to effectuate this cleanup effort. How effective it was is disputed by the parties. Wagner claims that it cleaned up all the neighboring properties except two where it was denied access, and that it asked the DEC and later the EPA to help it gain entrance to them, but that neither agency was able to help.

The EPA paints a different picture. It became involved at the request of DEC on November 8, 1985--over five months after the fire and chemical spill. In its administrative order, the EPA stated that a potentially dangerous situation existed because properties located in populated areas were still polluted, the contamination sites were...

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